dismissed EB-3 Case: Dentistry

U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3042 
Washington, DC 20529 
identifiing data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Citizenship 
and Immigration 
Services 
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Office: NEBRASKA SERVICE CENTER Date: MAR 2 0 2006 
LIN 03 239 50401 
IN RE: Pet~tioner : 
Beneficiary : 
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 8 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and is 
now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is a dental office. It seeks to employ the beneficiary permanently in the United States as a 
treatment coordinator. The director determined that the petitioner had not established that it had the continuing 
ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition, and, that it had 
not established that the beneficiary has the qualifications as stated on the labor certification petition and denied 
the petition accordingly. 
Counsel had indicated on appeal that he was submitting a legal brief and additional evidence within thirty days, 
despite a request made by the AAO, none was received. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 4 1153(b)(3)(A)(i), 
provides for the granting of preference classification to qualified immigrants who are capable, at the time of 
petitioning for classification under this paragraph, of performing slulled labor (requiring at least two years 
training or experience), not of a temporary nature, for which qualified workers are not available in the United 
States. 
The regulation at 8 C.F.R. 5 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
The regulation at 8 CFR 4 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. Any requirements of training or experience for skilled workers, professionals, or 
other workers must be supported by letters fiom trainers or employers giving the name, address, 
and title of the trainer or employer, and a description of the training received or the experience of 
the alien. 
(B) Skilled workers. If the petition is for a slulled worker, the petition must be accompanied by 
evidence that the alien meets the educational, training or experience, and any other requirements 
of the individual labor certification, meets the requirements for Schedule A designation, or meets 
the requirements for the Labor Market Information Pilot Program occupation designation. The 
minimum requirements for this classification are at least two years of training or expenence. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, which is the date the Form ETA 750 Application for Alien Employment Certification, was accepted for 
processing by any office within the employment system of the U.S. Department of Labor. The petitioner must 
also demonstrate that, on the priority date, the beneficiary had the qualifications stated on its Form ETA 750 
Application for Alien Employment Certification as certified by the U.S. Department of Labor and submitted with 
the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Cornrn. 1977). 
Here, the Form ETA 750 was accepted on April 24, 2001. The proffered wage as stated on the Form ETA 
750 is $20.00 per hour ($41,600.00 per year). The Form ETA 750 states that the position requires two years 
experience. 
With the petition, counsel submitted copies of the following documents: the original Form ETA 750, 
Application for Alien Employment Certification, approved by the U.S. Department of Labor; and, copies of 
documentation concerning the beneficiary's qualifications as well as other documentation. 
Because the director determined the evidence submitted with the petition was insufficient to demonstrate the 
petitioner's continuing ability to pay the proffered wage beginning on the priority date, consistent with 8 
C.F.R. $204.5(g)(2), the director requested on February 3, 2004, pertinent evidence of the petitioner's ability to 
pay the proffered wage beginning on the priority date. The director requested annual reports, 2001, 2002, and 
2003 federal tax returns, or audited financial statements, and additionally audited profit~loss statements, 
complete bank account records (chechng and savings statements from the priority date) and personnel 
records. The director requested the beneficiary's W-2 Wage and Tax Statements for 2001, 2002 and 2003, as 
well as the petitioner's "recurring household expenses."' 
Consistent with the regulation at 8 CFR 9 204.5(1)(3)(ii), the director requested evidence that the beneficiary has 
two years experience as treatment coordinator in the form of letters from current or former employers. 
In response to the director's requests counsel submitted copies of the following documents: an explanatory letter; 
a letter from petitioner; a statement of personal living expenses; one schedule from the petitioner's personal tax 
return; approximately 147 pages of bank statements; certificates of completion of the beneficiary's occupational 
education; and, two W-2 statements 
The director denied the petition on June 21, 2004, finding that the evidence submitted did not establish that 
the petitioner had the continuing ability to pay the proffered wage beginning on the priority date, and, that the 
evidence submitted did not demonstrate that the beneficiary has the requisite two years of salient work 
experience. 
On appeal, counsel asserts that the beneficiary was a treatment coordinator employed by the petitioner since 
May 21, 1998; and, the petitioner's personal assets, business cash flow, Schedule C statements, business 
chechng accounts, and, depreciation are all evidence of the ability to pay the proffered wage. 
As additional evidence to accompany the appeal, counsel submitted a letter and statements from an 
accountant; a Schedule C statement for tax year 2002; four W-2 statements; a 2001 personal tax return for the 
beneficiary; an 
 om the Professional Center of Studies, 
Odontology for 
 There is also a letter that the beneficiary was a dentist in a clin~c 
until 1992." 
' The 1-140 petitioner's business is a sole proprietorship. Therefore, to determine the ability of the petitioner 
to pay the proffered wage and meet her living costs, the director requested petitioner submit a statement of 
recumng household expenses for the petitioner's family. This statement must indicate all of the family's 
household living expenses. Such items generally includes the following: housing (rent or mortgage), food, 
car payments (whether leased or owned), installment loans, insurance (auto, household, health, life, etc.), 
utilities (electric, gas, cable, phone, internet, etc.), credit cards, student loans, clothing, school, daycare, 
gardener, house cleaner, nanny, and any other recurring monthly household expenses. 
Page 4 
In determining the petitioner's ability to pay the proffered wage during a given period, U.S. Citizenship and 
Immigration Services (CIS) will first examine whether the petitioner employed and paid the beneficiary 
during that period. If the petitioner establishes by documentary evidence that it employed the beneficiary at a 
salary equal to or greater than the proffered wage, the evidence will be considered prima facie proof of the 
petitioner's ability to pay the proffered wage. Evidence was submitted to show that the petitioner employed 
the beneficiary as a dental technician prior to April 24, 2001 through January 31, 2003. According to 
petitioner in a letter dated March 23,2004, the beneficiary was then employed as a treatment coordinator from 
February 2003 to March 23, 2004. In 2001 the petitioner paid the beneficiary $31,115.00,~ in 2002, 
$28,425.00; and, in 2003, $26,660.00. Since the proffered wage is $41,600.00 per year, these payments are 
less than the proffered wage. 
Alternatively, in determining the petitioner's ability to pay the proffered wage, CIS will examine the net 
income figure reflected on the petitioner's federal income tax return, without consideration of depreciation or 
other expenses. Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay 
the proffered wage is well established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F.Supp. 
1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 , (9th Cir. 
1984) ); see also Chi-Feng Chang v. Thornburgh, 719 F.Supp. 532 (N.D. Texas 1989). No precedent exists 
that would allow the petitioner to "add back to net cash the depreciation expense charged for the year." Chi- 
Feng Chang v. Thornburgh, Supra at 537. See also Elatos Restaurant COT. v. Sava, Supra at 1054. 
Unlike a corporation, a sole proprietorship is not legally separate from its owner. 
 Therefore the sole 
proprietor's income and personal liabilities are also considered as part of the petitioner's ability to pay. Sole 
proprietors report income and expenses from their businesses on their individual (Form 1040) federal tax 
return each year. The business-related income and expenses are reported on Schedule C and are camed 
forward to the first page of the tax return. Sole proprietors must show that they can cover their existing 
business expenses as well as pay the proffered wage. In addition, they must show that they can sustain 
themselves and their dependents. Ubeda v. Palmer, 539 F. Supp. 647 (N.D. 111. 1982), aff'd, 703 F.2d 571 (7th 
Cir. 1983). 
In Ubeda, 539 F. Supp. at 650, the court concluded that it was highly unlikely that a petitioning entity 
structured as a sole proprietorship could support himself, his spouse and five dependents on a gross income of 
slightly more than $20,000 where the beneficiary's proposed salary was $6,000 or approximately thirty 
percent (30%) of the petitioner's gross income. 
In the instant case, the petitioner is sole proprietor. There is no information concerning the number of 
members in her family, and, since the petitioner has not submitted complete copies of her personal income tax 
returns (IRS Form 1040) including the first page, no evidence was submitted concerning the petitioner's 
adjusted gross income. Therefore it is not possible to determine if the sole proprietor could support herself 
and her family for an entire year on what remains after reducing adjusted gross income by the amount 
required to pay the proffered wage. Also, the petitioner submitted an incomplete statement of personal 
expenses that did not provide the petitioner's monthly household expenses. 
The record of proceeding contains bank statements from the petitioner's checking accounts with substantial 
average monthly balances. However, without the personal tax returns requested by the director, it is not 
possible to determine the petitioner's adjusted gross income of which cash is one component. 
2 
 Another W-2 for 2001 was submitted that evidenced income from another corporation. 
Page 5 
No tax returns were submitted by the petitioner to demonstrate the petitioner's ability to pay the proffered 
wage of $41,600.00 per year from the priority date of April 24,2001. 
If the net income the petitioner demonstrates it had available during that period, if any, added to the wages 
paid to the beneficiary during the period, if any, do not equal the amount of the proffered wage or more, CIS 
will review the petitioner's assets. No tax returns were submitted by the petitioner to demonstrate the 
petitioner's adjusted gross income. 
Counsel asserts in his brief accompanying the appeal that there are other ways to determine the petitioner's 
ability to pay the proffered wage from the priority date. Counsel cites no legal precedent for the contention, 
and, according to regulation,3 copies of annual reports, federal tax returns, or audited financial statements are 
the means by which petitioner's ability to pay is determined. 
Petitioner's counsel advocates the addition of depreciation taken as a deduction in those years' tax returns to 
eliminate the abovementioned deficiencies. Since depreciation is a deduction in the calculation of taxable 
income on tax Form 1040, this method would eliminate depreciation as a factor in the calculation of taxable 
income. 
There is established legal precedent against counsel's contention that depreciation may be a source to pay the 
proffered wage. The court in Chi-Feng Chang v. Thornburg, 719 F. Supp. 532 (N.D. Tex. 1989) noted: 
Plaintiffs also contend that depreciation amounts on the 1985 and 1986 returns are non-cash 
deductions. Plaintiffs thus request that the court sua sponte add back to net cash the 
depreciation expense charged for the year. Plaintiffs cite no legal authority for this 
proposition. This argument has likewise been presented before and rejected. See Elatos, 
632 F. Supp. at 1054. [CIS] and judicial precedent support the use of tax returns and the 
net incomefigures in determining petitioner's ability to pay. Plaintiffs' argument that these 
figures should be revised by the court by adding back depreciation is without support. 
(Original emphasis.) Chi-Feng at 537. 
As stated above, following established legal precedent, CIS relied on the petitioner's net income without 
consideration of any depreciation deductions, in its determinations of the ability to pay the proffered wage on 
and after the priority date. 
Counsel asserts that the petitioner's personal assets are evidence of the ability to pay the proffered wage. We 
reject the petitioner's assertion that the petitioner's assets, personal or business, should have been considered 
in the determination of the ability to pay the proffered wage. The petitioner's assets include depreciable 
assets that the petitioner uses in her business. Those depreciable assets will not be converted to cash during 
the ordinary course of business and will not, therefore, become funds available to pay the proffered wage. 
Further, the petitioner's assets must be balanced by the petitioner's liabilities. Otherwise, they cannot 
properly be considered in the determination of the petitioner's ability to pay the proffered wage. 
Counsel contends that business cash flow and Schedule C statements are evidence of the ability to pay the 
proffered wage. In generally accepted accounting principles (GAAP) based cash flow statement the sources 
of cash are disclosed. The general categories are cash received from operations, and, investments and 
borrowings. Other sources of cash can be from the sale of assets. A cash flow statement, used with the 
' 8 C.F.R. 5 204.5(g)(2). 
Page 6 
balance sheet and income statement, present an analysis of the financial health of a business. As stated 
already, it is the petitioner's adjusted gross income that is probative of the ability to pay the proffered wage. 
The profit or loss stated on Schedule C is one component of adjusted gross income. 
The petitioner has submitted unaudited financial statements. The unaudited financial statements that petitioner 
submitted are not persuasive evidence. According to the plain language of 8 C.F.R. § 204.5(g)(2), where the 
petitioner relies on financial statements as evidence of a petitioner's financial condition and ability to pay the 
proffered wage, those statements must be audited. Unaudited statements are the unsupported representations 
of petitioner. The unsupported representations are not persuasive evidence of a petitioner's ability to pay the 
proffered wage. Thus, the unaudited financial statements are of little evidentiary value in this matter. 
The second contention of counsel in the appeal of the Director's decision is that CIS incorrectly applied the 
standard for determining whether the beneficiary met the experience requirement prior to the filing of the 
labor certification application and did not take into account the nature of the proffered position required by 
case law and regulation. The Director determined that the petitioner had not established that the beneficiary 
has the requisite expenence as stated on the labor certification petition. 
The petitioner has presented evidence as recounted above of the beneficiary's qualification and work experience 
to support the petition. The director in his decision determined that the beneficiary had not met the minimum 
requirements of two years experience as a treatment coordinator stated in the certified Alien Employment 
Application. Reviewing his decision reveals, and the record shows, that the beneficiary has not satisfied the 
requirements of regulation 8 C.F.R tj 204.5(1)(3)(ii). Neither job verification letter from either the petitioner nor 
the dental clinic located in the City of Cochabama, Bolivia, state beneficiary's dates of 
employrnent/experience, number of hours worked per week, and number of weeks per year worked in a complete 
fashion that would enable a reviewer to determine if beneficiary had attained the requisite two years of experience 
stated in the certified ETA 750A. The petitioner stated in her letter dated March 23, 2004 that the petitioner 
employed the beneficiary as a dental technician prior to April 24, 200 1 through January 3 1, 2003. According 
to petitioner, the beneficiary was then employed as a treatment coordinator from February 2003 to March 23, 
2004. The letter offered for prior experience as a treatment coordinator stated that the beneficiary was a dentist 
in a clinic in the city of Cochabama, Bolivia "in 1988 until 1992 after attaining completion of a number of 
professional certificates. No evidence was submitted evidencing two years experience as a treatment 
coordinator. 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. The evidence submitted does not demonstrate credibly that the beneficiary 
had the requisite two years of experience. Therefore, the petitioner has not established that the beneficiary is 
eligible for the proffered position. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
§ 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.